Discussing Important Wills Act Changes In Uncertain Times

The coronavirus has put a huge strain on legal service professionals in recent weeks as anxious adults rush to make a Will.

Many private client departments have seen Will enquiries increase by as much as 75 per cent on their usual demand.

At the same time, social distancing restrictions have made executing a Will, under The Wills Act 1837, extremely challenging with face to face meetings and the ability for two independent witnesses watching the testator sign the document now a near impossibility whilst the majority of the UK work force are at home or self-isolating.

Will writers and solicitors have adapted innovatively with ‘drive thru’ services, window witnesses and garden-based signings enabling the system to service the demand whilst complying with government guidelines and advice.

However, as restrictions tighten, even these services will no longer be viable workarounds.

Scottish rules have relaxed in recent days and the Law Society of Scotland is advising solicitors north of the border to act as witness via video conferencing; advice that may be doled out in England and Wales before too long.

Edward Allen of York based firm, Langleys Solicitors, has taken the time to discuss the issues within the sector and the ways in which a relaxed Wills Act could help.

What impact has Covid-19 had on Langleys and the wider private client sector?

This has been the first real test of the comprehensive business continuity provisions that Langleys have in place. Thankfully those plans have proven to be robust. Langleys offers a wide range of services to clients and some areas are naturally going to be more significantly impacted than others during the current lock down. However, one of the benefits of being a full-service firm is that the different parts of the business can support each other where necessary. During this time the Private Client department at Langleys remains busy. We have seen a 40% increase in new Will enquiries and we continue to receive enquiries in respect of Lasting Powers of Attorney and the Administration of Estates in particular. I have seen other firm’s reporting varying increases in Will enquiries 30%, 50% and in some cases 70%. There is obviously increased demand during these uncertain times and I believe the variances in increases reported may reflect differing abilities that firms have to continue to provide services during the current crisis.

In what ways have Langleys ensured new Will enquiries can still be serviced?

The Private Client team at Langleys are still all working albeit that we are, as much as possible, doing so remotely from home. We have been proactive in our approach to taking new instructions by utilising the technology that we have at our disposal. Initial instructions are being taken over the telephone, using video conferencing or by email. In many cases we will use a combination of these in whichever way best meets client’s needs. We have spent considerable time in the past developing Will questionnaires to help obtain initial information from clients and this has proved invaluable in the current circumstances. We have, understandably, seen a shift in clients wanting to sign Wills at home without us being present. Our experienced team have been able to provide clients with advice on how best to do this whilst still complying with current social distancing requirements as well as how clients may wish to record the process (e.g. video) to ensure the risk of potential claims is mitigated.

What benefits and dangers will clients face if Section 9 of The Wills Act 1837 is relaxed to allow video conferencing and witnessing?

The legislation specifying the formalities for a Will to be valid is nearly 200 years old. Society, and technology in particular, has changed beyond recognition since the time that legislation was put in place. A consultation by the Law Commission in respect of how the law relating to Wills should be updated was undertaken in 2017 and they are currently analysing responses to develop a final policy, however, this has been placed on hold whilst they consider reforms in other areas.

It is important that the legislation is reviewed and improved as appropriate. In the current circumstances the potential benefits of relaxing the rules regarding witnessing are obvious. The most vulnerable in society, the people who may need to review their Wills most urgently, would be able to do so without being in close proximity to someone who may carry the virus. However, we should be cautious about removing the need for witnesses. Their role is not only to confirm that the Will has been signed by the testator or by someone at the testator’s direction. They also provide evidence of the circumstances in which the Will was signed should there ever be any doubts raised about the Testators capacity, their knowledge and approval of the contents of the Will or as to whether they were under any undue influence to sign the Will. These factors cannot always be determined even if the Will were to be witnessed over a video link.

Some have also suggested Privileged Wills could help solve the issues until the UK is free to move and socialise once again. Is this something that should be considered?

Section 11 of the Wills Act 1837 and The Wills (Soldiers and Sailors) Act 1918 provide that Soldiers and Sailors can dispose of their estates without having to comply with the formalities of s9 Wills Act 1837. Such a Will does not need to be signed by the Testator, does not require two witnesses and does not even have to be written. The idea behind such different requirements is simply that persons whose lives may be at risk in very extreme circumstances should be able to finalise their affairs at very short notice if necessary.

Whilst the current Coronavirus crisis is ongoing, and social distancing requirements are in place to try and combat it, there have been suggestions that the ability to make Privileged Wills should be extended to everyone. Whilst this would address immediate concerns about drafting Wills and how to have them executed the longer term impact is likely to be an increase in Wills being challenged and increased litigation in relation to estates. The lack of formalities when making the testamentary disposition only provides potential uncertainty regarding the Testators actual intentions.

Do you think any changes will be temporary, or is this an opportunity for laws around Wills to be considered and changed permanently?

I think any changes made at the moment will be temporary. It is unlikely that permanent changes will be made until the Law Commission publishes a policy, particular in light of the fact that they have already completed significant work in this area. However, if changes are introduced on a temporary basis and it is shown that these can work in practice without a significant risk of increased disputes and litigation then it is more likely that reforms will be introduced permanently at some point in the future.

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